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"I have never welcomed the weakening of family ties by politics or pressure" - Nelson Mandela."He who travels for love finds a thousand miles no longer than one" - Japanese proverb."Everyone has the right to respect for his private and family life, his home and his correspondence." - Article 8 of the European Convention on Human Rights."When people's love is divided by law, it is the law that needs to change". - David Cameron.

Thursday, 13 March 2014

Electronic Immigration Network : New report on minimum income requirement for partner visas as court hears Home Office appeal

'The House of Commons Library last week issued an updated Commons Library Standard Note on the financial (minimum income) requirement for partner visas.

'... As Colin Yeo reported on Garden Court's Free Movement blog, the Court of Appeal last week heard the Home Office's appeal against the decision in MM, R (On the Application Of) v The Secretary of State for the Home Department [2013] EWHC 1900 (Admin).

This is very much in the public domain and the public interest, and needs to be accessible to all. Therefore we re-publish the full text below :

HOUSE OF COMMONS LIBRARY

The financial (minimum income) requirement for partner visas

Standard Note: SN/HA/06724

Last updated: 7 March 2014

Author: Melanie Gower

Section Home Affairs Section

This information is provided to Members of Parliament
in support of their parliamentary duties and is not intended to address
the specific circumstances of any particular individual. It should not
be relied upon as being up to date; the law or policies may have changed
since it was last updated; and it should not be relied upon as legal or
professional advice or as a substitute for it. A suitably qualified
professional should be consulted if specific advice or information is
required.

This information is provided subject to our general terms and conditions
which are available online or may be provided on request in hard copy.
Authors are available to discuss the content of this briefing with
Members and their staff, but not with the general public.

Since 9 July 2012, applications for permission to
enter/remain in the UK as the non-EEA national partner of a British
citizen, refugee or person settled here have been required to
demonstrate available maintenance funds equivalent to a minimum gross
annual income of £18,600 (or higher in cases including non-EEA national
dependent children).

The Immigration Rules specify which income sources
can be used to satisfy the requirement (including income from
employment, private pension or cash savings), and the documents that
must be provided as evidence. In many cases only the British/settled
sponsor's employment income is taken into account, because their
partner's employment can only be considered if they are already in the
UK with permission to work.

The Government considers that these maintenance rules
will ensure that families are able to support themselves and the
migrant partner's integration without being a burden on the general
taxpayer.

Various migrants' rights groups are campaigning
against the financial requirement, which they consider to be unfair,
disproportionate and counter-productive to the Government's intentions.
In June 2013 a report by members of the APPG on Migration called for an
independent review of the requirement and its impact. The Government
does not intend to do this. It has made some minor adjustments to the
policy, but overall is satisfied that it is operating as intended.

In July 2013 the High Court considered the lawfulness
of the financial requirement. It did not strike it down as unlawful in
general, but found that certain factors in the way it is applied
represent a very significant interference with British citizens' and
refugees' rights. It suggested some alternative ways in which a
financial requirement could be applied.

The Government has appealed against the decision. In
the meantime, it has suspended the processing of applications that fall
for refusal solely because they do not satisfy the financial requirement
rules. Processing continues as normal for applications that fall for
refusal for other reasons, and for applications that satisfy the
Immigration Rules requirements.

The Immigration Rules requirements for leave to
enter/remain as the non-EEA national partner (spouse/fiancé(e), civil
partner, prospective civil partner, unmarried or same-sex partner) or
dependent child of a British citizen or person who has Indefinite Leave,
Refugee Status or Humanitarian Protection in the UK changed on 9 July
2012, as part of a broader package of changes to the Immigration Rules
for family members. [1]

One of the most significant changes was the
introduction of a financial (minimum income) threshold in order to
demonstrate adequate maintenance funds.

1.1 Overview of the maintenance requirements before and after 9 July 2012

Before 9 July 2012

Since 9 July 2012

Must demonstrate ability to adequately accommodate and maintain without recourse to public funds

With reference to Income Support levels (in effect requiring a post-tax income of £5,500 per year).

Must demonstrate available maintenance funds equivalent to an income of at least £18,600per year

(plus an extra £3,800 for one dependent child and extra £2,400 for each additional child).

Only income sources and evidence specified in the Immigration Rules can be taken into account, for example:

- Sponsor's earnings in the UK, overseas and confirmed UK job offer

- migrant spouses' employment income if they are in the UK with permission to work

- migrant spouse's overseas employment income or offers of employment in the UK cannot be taken into account

- offers of third party support cannot count

Relevant when applying for temporary leave to
remain (after two year probationary period, migrant partner could apply
for Indefinite Leave to Remain).

Must be satisfied at two application stages
during a five year probationary period, and when applying for Indefinite
Leave to Remain.

1.2 Summary of the rationale for the minimum income requirement

The changes to the family migration rules (including
the introduction of the minimum income requirement) contribute to the
Government's objective to reduce net migration levels from hundreds of
thousands to tens of thousands. [2] However it has emphasised other policy objectives in explaining the rationale behind the minimum income requirement.

The Government considers that family migrants and
their British-based sponsors should have sufficient financial resources
to be able to support themselves and enable the migrant to participate
in society without being a burden on the general taxpayer. [3]
It changed the maintenance requirements because it did not consider
that the rules in place before July 2012 were sufficient for these
objectives.

The minimum income threshold was set at £18,600 after
the Government had considered advice from its Migration Advisory
Committee (MAC). [4]
The MAC had recommended a minimum gross sponsor income threshold of
between £18,600 and £25,700 per year to sponsor a partner. The different
thresholds reflected different approaches to calculating "burden on the
state". The MAC estimated that around 45% of applicants would fall
short of the lower threshold amount and 64% of applicants would not
satisfy the upper threshold. The MAC emphasised that its recommendations
were purely based on economic considerations, and did not take into
account wider legal, social or moral issues related to family migration.

The MAC had identified £18,600 as the level of annual
gross pay at which a couple would not receive income-related benefits
(assuming weekly rent of £100). [5]
The Government has said that it intends to review the level of the
financial requirement annually, and that it may be affected by the
roll-out of Universal Credit. [6]

The higher income requirement for sponsoring a child
is intended to reflect "the education and other costs arising in such
cases". [7]
It applies at each application stage until the migrant partner is
granted permanent settlement, even if the dependent child turns 18
before this time (unless they have been granted an immigration status in
their own right). [8]
It applies to biological children, step-children and adopted children
(in certain circumstances), and children coming for the purpose of
adoption who are subject to immigration control and applying for limited
leave to enter or remain under Appendix FM or the relevant paragraphs
of Part 8 of the Immigration Rules.

The financial requirement does not apply in respect of applications from a child who:

• Is a British citizen (including an adopted child who acquires British citizenship);

• Is an EEA national (except where a non-EEA spouse
or partner is being accompanied or joined by the EEA child of a former
relationship who does not have a right to be admitted to the UK under
the Immigration (EEA) Regulations 2006);

• Is settled in the UK or who qualifies for indefinite leave to enter; or

• Qualifies in a category under Part 8 of the Immigration Rules to which the requirement does not apply.

1.3 July 2012: Initial reactions to the policy

In Parliament

Responding to the Home Secretary's oral statement on
11 June 2012, Yvette Cooper, Shadow Home Secretary, said that Labour
supported strengthening the family immigration rules to protect UK
taxpayers. However, she cast doubt on the effectiveness of the
Government's approach:

We agree that stronger
safeguards are needed for the taxpayer on family migration. If people
want to make this country their home, they should contribute and not be a
burden on public funds, but it is not clear that the best way to
protect the taxpayer is to focus solely on the sponsor's salary. For
example, in the current economic climate, someone on £40,000 today could
lose their job next month, and then, of course, there is no way to
protect the taxpayer. The system does not take account of the foreign
partner's income, which might have a differential impact on women. Will
the Home Secretary explain why the Government ruled out consulting on a
bond that could have been used to protect the taxpayer if someone needed
public funds later on? [9]

In response, the Home Secretary said that a bond
"would only be available to those people who had capital and were able
to put up a bond in the first place." [10]

There was a mixed response from backbench Members to
the Home Secretary's statement. Some welcomed the changes, expressing
hopes that they will tackle public concerns about migrants' (lack of)
integration, 'sham marriages', and a lack of public confidence in the
immigration system. [11]

Others were more critical; several Members
highlighted examples of constituency cases that would be unable to
satisfy the minimum income threshold, and raised concerns that certain
groups would be disproportionately affected, such as young people,
ethnic minorities, women and people living in low-pay areas. [12]
Fiona MacTaggart MP described the financial requirement as a "means
test on family life", and contrasted it with the Government's
previously-stated "family-friendly" intentions. [13]

NGOs, think-tanks, academia, etc.

Initial responses to the July 2012 changes from
various migrants' rights and civil liberties organisations raised
concerns that they would undermine, rather than enhance, migrant family
members' prospects for integration.

Several highlighted particular concerns about the
minimum income threshold and the effect it was likely to have on groups
more likely to be in low-paid employment. The Family Immigration
Alliance, a forum for British/settled partners with experiences of
sponsoring partners' applications, described the minimum income
requirement as "an act of obscene discrimination", and argued that a
precedent had been set "where finance extends beyond your quality of
life, into your freedom to have a family at all." [14]

The Migrants' Rights
Network warned that the changes would "introduce additional hurdles and
costs for people, particularly lower earners" and were likely "to be
viewed more widely as unfair as their impacts on both migrants and
British people are realised". [15]

The Migrant Integration Policy Index (MIPEX) project,
led by the British Council and the Migration Policy Group think-tank,
runs an interactive website which compares migrants' integration
opportunities, based on analysis of immigration policies in over 30
countries. A July 2012 blog post written by one of its Research
Co-ordinators compared the UK's new partner visa rules with those in
place in other countries, and concluded that "The UK is slowly becoming
one of the least favourable places for non-EU residents and even its own
citizens to reunite with their families." It cautioned that the minimum
income requirement might undermine migrants' integration prospects:

A high income threshold
does not effectively promote long-term economic participation,
education, language learning, or fighting forced marriages. Instead,
such requirements have a disproportionate impact on limiting the number
of family reunions, especially for low-income and vulnerable groups. For
many, family life becomes harder or impossible through 'enforced
separation.' The OECD finds
that every extra year that child spends in country of origin and not in
country of destination has a negative impact on their language learning
and societal adjustment. The OECD's conclusion is that family reunion
should be facilitated as soon as possible. British policy actors must
strictly scrutinise whether the new family reunion requirements
exacerbate some of the very problems that they are supposed to address. [16]

On the other hand, Migration Watch issued a brief
statement welcoming the changes, which it considered would enhance
family migrants' prospects for integration. [17]

2 How the Rules are applied

2.1 Practical guidance for applicants

The content (and format) of the Immigration Rules for
family members of British/settled persons who wish to join them in the
UK are complex. They are spread between Part 8 and Appendix FM and FM-SE of the Immigration Rules. Paragraphs A277 - A279
of the Immigration Rules set out which parts of the Rules apply to pre-
and post- 9 July 2012 spouse/fiancé(e)/partner visa applicants.

The 'Partners and families'
section on the UK Border Agency website links to further pages with
guidance about the Immigration Rules requirements for persons applying
under the various different family immigration categories. It includes a
section for 'family of British citizens and settled persons' which includes links to detailed information about how the financial requirement can be met.

Applicants are also directed to read the guidance used by Home Office caseworkers. 'Chapter 8 Appendix FM (family members)' of the Immigration Directorate Instructions
deals with the rules for applications made on or after 9 July 2012 - in
particular, Annex FM 1.7 'Financial requirement' and Annex 1.7a
'Maintenance' discuss in detail how the minimum income requirement is
applied.

The Immigration Law Practitioner's Association has produced several information sheets
on the changes to the family migration rules and related developments.
However, as always, constituents seeking advice specific to their
circumstances should consult a suitably qualified professional. The
website of the Office of the Immigration Services Commissioner explains about the regulation of immigration advisers and includes a useful online 'adviser finder'.

2.2 The scope for exemptions

Persons granted leave to remain in a family
immigration category before 9 July 2012 remain covered by the
Immigration Rules in force prior to that date. They are not subject to
the minimum income requirement. [18]

For applications submitted on or after 9 July 2012,
there is no scope to make exceptions to the minimum income requirement
where the Immigration Rules require that it is satisfied. It applies
when the migrant is first applying for temporary immigration leave to
remain as a family member, when they apply to renew their temporary
immigration status, and after five years, when they become eligible to
apply for Indefinite Leave to Remain.

However, the minimum income requirement does not
apply if the UK-based sponsor is in receipt of Disability Living
Allowance, Severe Disablement Allowance, Industrial Injuries Disablement
Benefit, Personal Independence Payment, Attendance Allowance, or
Carer's Allowance. Instead, the 'adequate' maintenance requirements in
the previous version of the Immigration Rules must be satisfied -
namely, that after deduction of income tax, national insurance
contributions and housing costs, there is a level of income available to
the family which is equivalent to Income Support levels. [19]
However, the minimum income requirement will apply in subsequent
applications if the sponsor's circumstances have changed. In March 2013
the Government confirmed that a review of the exemptions for sponsors
who are disabled or carers was ongoing and would be concluded 'shortly',
and that affected persons should not assume that the exemption would
necessarily remain after April 2013. [20] However these exemptions remain in place to date.

Applications sponsored by a member of HM Armed Forces
personnel were also initially exempt from the minimum income
requirement and continued to be assessed against the pre-9 July 2012
Immigration Rules requirements. [21] However, the minimum income requirement has applied in Armed Forces applications since 1 December 2013. [22]
The main difference with non-Armed Forces cases is that partners in
Armed Forces cases are initially given leave to remain for five years
(rather than two and a half years as is the case for civilian cases).
This affects the way in which the couple's cash savings are calculated,
if they choose to rely on such savings in order to meet the minimum
income requirement.

Persons in receipt of certain payments related to
service in HM Armed Forces (under the Armed Forces Compensation Scheme
or War Pensions Scheme) are exempt from the minimum income requirement. [23]

Non-EEA nationals, including family members of
British citizens, are subject to the UK's Immigration Rules. The
Immigration Rules do not have to mirror European law, and indeed it has
long been the case that they have contained more restrictive eligibility
criteria for family members than European law. The financial
requirement is the latest example of such a difference - EU law does not
specify a minimum income or specific level of resources that the EEA
national must have in order for their non-EEA family member to join them
in the host Member State.

Migration Watch has called for financial eligibility
criteria to be applied to non-EEA national family members of EU citizens
living in the UK in a similar way as is the case under the Immigration
Rules. [25]
Chris Bryant, then Shadow Immigration Minister, also described the
difference between EU law and the UK's Immigration Rules as a
"significant loophole" and suggested that it requires "concerted EU
action". [26]

Although the UK is an EU Member State, EEA citizens
are not generally considered to be exercising 'free movement' rights
granted by European law whilst they are living in their own country, and
therefore their non-EEA family members cannot join them using the
provisions in EU free movement law. However, following the European
Court of Justice's decision in the 'Surinder Singh' case, an exception
is made if the EEA citizen has been exercising their free movement
rights as a worker or self-employed person in another EU Member State
but then wishes to return to their country of nationality with their
family member. [27]
In these circumstances the non-EEA national spouse may be treated as
the family member of an EEA citizen in accordance with EU free movement
law, rather than being subject to the country's national immigration
law. [28]

There is anecdotal evidence to suggest that some
British citizens - particularly those who cannot satisfy the UK's visa
requirements - are deciding to temporarily live and work in another EU
Member State, in order to be able to return to the UK with their non-EU
partner under European law instead of applying for a visa under the
Immigration Rules. [29]

In December 2013 the Government amended the
regulations transposing the Free Movement of Persons Directive into UK
law, by requiring that the British citizen had transferred the "centre
of their life" to another Member State in order to benefit from Singh. [30] The Explanatory Memorandum to the SI explained:

7.11 (...) Whether or not a
British citizen has transferred the centre of their life to another
member State will be assessed by reference to a number of criteria,
including the length of residence, the degree of integration and whether
or not the British citizen has moved their principal residence to that
other member State.

The changes have been made "in order to ensure that
there has been a genuine and effective use of free movement rights in
the other member State before such rights may apply by analogy upon
return to the UK." One of the intended effects is "preventing abuse by
those British citizens who move temporarily to another member State in
order to circumvent the requirements of the usual immigration rules for
their family members upon return to the UK." The EU Rights Clinic at the
University of Kent has posted some commentary on the change. [31]

2.3 Ways of satisfying the minimum income requirement

Only income from sources that are specified in
Appendix FM-SE of the Immigration Rules can be considered when assessing
whether an application satisfies the minimum income requirement. [32] The Home Office's Immigration Directorate Instructions summarise the five acceptable income sources:

• Income from salaried or
non-salaried employment of the partner (and/or the applicant if they are
in the UK with permission to work). This is referred to as Category A
or Category B, depending on the employment history. See section 5 of
this guidance.

• Non-employment income,
e.g. income from property rental or dividends from shares. This is
referred to as Category C. See section 6 of this guidance.

• Cash savings of the
applicant's partner and/or the applicant, above £16,000, held by the
partner and/or the applicant for at least 6 months and under their
control. This is referred to as Category D. See section 7 of this
guidance.

• State (UK or foreign) or
private pension of the applicants partner and/or the applicant. This is
referred to as Category E. See section 8 of this guidance.

• Income from
self-employment, and income as a director of a specified limited company
in the UK, of the partner (and/or the applicant if they are in the UK
with permission to work). This is referred to as Category F or Category
G, depending on which financial year(s) is or are being relied upon. See
section 9 of this guidance. [33]

Various combinations of these sources are allowed in
order to meet the minimum income requirement, however certain
combinations are not. For example, cash savings can be combined with
income from salaried and non-salaried employment in certain
circumstances, but they cannot be combined with income from
self-employment.

There are specific criteria attached to each of these
permitted income sources. For example, as the descriptions for
categories A and B indicate, the migrant applicant's employment income
can only be taken into account once they are in the UK with permission
to work - their overseas employment income, or prospective earnings from
a job offer in the UK, will not be taken into account. Therefore, only
the sponsor (the British/settled partner)'s employment income is
considered if the applicant is not already living and working in the UK.
Furthermore,

• If the sponsor is in the UK and relying on their employment income,
they must be in employment at the point of application (with a gross
annual salary which meets the financial requirement alone or in
combination with other permitted sources) and either:

o have been so continuously for the previous six months or

o if employed for less than
six months, have also received over the previous 12 months the level of
income required through gross salaried income and/or other permitted
sources.

• If the sponsor has been living overseas and is returning to the UK with the applicant,
they must have a verifiable job offer or signed contract of employment
to start work within three months of their return (with an annual salary
which is sufficient to meet the financial requirement on its own or in
conjunction with other permitted sources). They must also either:

o be in employment overseas
at the point of application (with a gross annual salary which meets the
financial requirement alone or in combination with other permitted
sources) and have been so continuously for at least the previous six
months; or

o have received the level
of income required over the previous 12 months through gross salaried
income and/or other permitted sources.

The Immigration Rules and Chapter 8 Appendix FM of the Immigration Directorate Instructions
also specify what pieces of evidence must be submitted in order to
demonstrate income from each of the permitted sources. For example, an
application relying on income from salaried employment must provide:

• Wage slips covering 6 or 12 months prior to the date of the application (depending on the length of employment); and

• A letter from the employer(s) who issued the wage
slips, confirming the person's employment and gross annual salary; the
length of their employment; the period over which they have been or were
paid the level of salary relied upon in the application; and the type
of employment (permanent, fixed-term contract or agency); and

• Personal bank statements corresponding to the same
period(s) as the wage slips, showing that the salary has been paid into
an account in the name of the person or in the name of the person and
their partner jointly.

The guidance states that in addition, P60(s) for the
relevant period(s) of employment (if issued) and a signed contract(s) of
employment may also be submitted or requested by the decision-maker, in
respect of paid employment in the UK.

If cash savings are being used to meet or contribute
to the minimum income requirement, they must have been held by the
applicant, their partner or both jointly and under their control, and
for at least the six months prior to the date of application. The first
£16,000 in cash savings are not taken into account. This is because
£16,000 is the level at which a person generally ceases to be eligible
for income-related benefits. When applying for temporary leave to
remain, the amount of cash savings that can be counted towards the
income requirement is calculated by dividing the amount of savings over
£16,000 by 2.5 (this is equivalent to the number of years of temporary
leave being applied for). When applying for Indefinite Leave to Remain
(after five years), all cash savings over £16,000 can be considered.

In practice, therefore, when applying for temporary leave as a partner:

• £62,500 in cash savings is required if no other income sources are being used to meet the income requirement: (62,500-16,000) / 2.5 = 18,600

• £17,500 in cash savings is required if the sponsor's income is £18,000, in order to make up the £600 shortfall: (17,500-16,000) / 2.5 = 600

Some changes have been made to the Immigration Rules and policy guidance, in response to calls for greater flexibility. [34]
For example, in April some flexibility was introduced about the length
of time that cash savings arising from the realisation of an asset must
be held, and it was confirmed that academic stipends or maintenance
grants can be counted as income. It was also confirmed that caseworkers
have the discretion to contact applicants to request further information
or documentation before making a decision on the application.

UKBA case file analysis cited in the Home Office's
Impact Assessment suggested that around 45% of sponsors sampled were not
in employment or earned less that £18,600 per annum. It also noted that
the Annual Survey for Hourly Earnings indicated that around 40 - 45% of
UK residents earn less than £18,600. The adult minimum wage for a 40
hour week is currently equivalent to £12,875.20 per annum.

The Government has said that £18,600 is the income
level at which a couple generally cease to be eligible for
income-related benefits. Its Impact Assessment suggested that a
proportion of persons earning less than this would still be eligible to
sponsor a partner visa - for example, if they are in receipt of certain
welfare benefits and therefore exempt from the requirement, or if they
and their partner have appropriate sources of non-employment income, or
if they increase their working hours or skills in order to earn a higher
income.

Should the income threshold take regional differences into account?

Some have argued that there should be variable income
thresholds to reflect differences in wages and living costs across the
UK (and overseas).

The MAC's report to the Government did not consider
these arguments in detail, but said that it did not see a clear case for
differentiation. [36]
The Government shares the MAC's concerns. It believes that a single
national threshold provides clarity and simplicity for applicants and
Home Office staff. It has also pointed out that the benefit system is
not regionalised (with the exception of housing benefits) in spite of
regional differences in wages and costs of living. The Government also
argues that regional thresholds would be difficult to enforce, since
there would be a risk that some sponsors would temporarily move to an
area with a lower income threshold until the visa had been granted.
Another concern is that families who had to move for other reasons, or
who lived in a relatively poor part of an affluent region (or vice
versa) might be unfairly dis/advantaged by differential thresholds.

Are the evidential requirements unduly restrictive?

Although the Government has made some minor
adjustments to the Rules since July 2012, critics have highlighted
examples of inflexibility in the way in which the minimum income
threshold is assessed. For example, there is no scope to reduce or waive
the minimum income threshold if a couple has reduced costs of living
due to offers of third-party support (such as accommodation provided by
relatives), or to take into account an applicant's high earnings
overseas or job offers in the UK, or cash savings below £16,000 or which
have not been held for six months.

The Government has argued that offers of third party
support are vulnerable to changes in circumstances or relationships.
Furthermore, it argues that employment overseas, employment prospects in
the UK or promises of employment are no guarantee to getting a job. It
has suggested that if a migrant partner has a confirmed job offer in the
UK, they could apply under Tier 2 of the points-based system instead,
although it has acknowledged that the eligibility criteria for Tier 2
visas would rule this out in some cases. It also argues that there are
some permitted income sources which allow the migrant partner's
non-employment income to be taken into account.

It has said that at least six months' evidence of
cash savings is necessary in order to ensure that they are genuinely
under the couple's control and not the product of a short-term loan, and
that it is reasonable to expect applicants to organise their finances
in accordance with the requirements of the Immigration Rules.

Is the minimum income requirement saving money or leading to unforeseen costs?

Some families affected by the rules have argued that
they undermine the Government's objectives to promote self-sufficiency
and family unity. There have been accounts of families enduring
prolonged periods of separation due to not being able to satisfy the
minimum income requirement. For example, if a British citizen returns to
the UK to find a job at the appropriate minimum income threshold, they
will need to work for at least six months before they can sponsor the
application. It has also been argued that some families have needed
recourse to public funds, which they would not have needed if the
migrant partner was able to join them in the UK and share the sponsor's
work and caring responsibilities.

The Home Office's Impact Assessment estimated the
minimum income requirement would bring an overall net benefit of
£660million over ten years. This estimate included consideration of the
reduction in direct tax revenue from working migrant partners, and
savings in healthcare, education and welfare.

Middlesex University has argued that the Government
did not take into account the loss of the wider economic benefits of
migrant partners' economic activity. Using an alternative model for
calculations based on the figures in the Government's Impact Assessment,
it has suggested that the changes could cost the UK £850million over
ten years. [37] The Government does not accept these conclusions. [38]

3 Opposition to the minimum income requirement

3.1 The 'Divided Families' campaign

Various civil society organisations are involved in a
'Divided Families' campaign against the minimum income requirement. The
Joint Council for the Welfare of Immigrants and the Migrants' Rights
Network are taking prominent roles, and groups such as BritCits and the Family Immigration Alliance have established platforms for persons affected by the rules changes to share information and personal experiences. [39]

3.2 June 2013: APPG on Migration's inquiry into the impact of the new Rules

In June 2013 a committee of members of the All-Party Parliamentary Group (APPG) on Migration [40] published a report of their inquiry into the impact of the family migration rules changes. [41]
The inquiry focussed on the impact of the minimum income requirement
for partner visas, and other changes affecting adult dependent relatives
(not discussed in this note). Over 280 submissions of evidence were
received, over half of which were from families affected by the rules. [42]

The report recommended that the Government commission
an independent review of the minimum income requirement and its
impacts, to consider whether the level of the income requirement and the
range of permitted income sources "represent an appropriate balance
between the different interests in this area". [43]
The Government has rejected this idea, stating that it is satisfied
that the family Immigration Rules "are operating as intended" but that
it will keep their impact under review. [44]

The committee had found that the minimum income
requirement had resulted in some British citizens and permanent
residents being separated from their non-EEA national partner/children,
including sponsors who were in full-time employment and earning above
the minimum wage. Submissions of evidence suggested that sponsors based
outside London and the South East, and in lower-earning sections of the
population (including women, young adults, the elderly and some ethnic
minority groups) had been particularly affected. It received evidence
suggesting that there had been some unforeseen costs to the public purse
as a result of non-EEA national partners' exclusion from the UK, such
as UK-based sponsors having increased recourse to welfare benefits, and a
loss of potential tax revenue from non-EEA partners' future earnings.

In addition, the committee contended that the limited
range of income sources which can be taken into account appear to have
delayed or prevented some families from living together in the UK,
including high income/high net worth individuals.

The UK's four Children's Commissioners endorsed the
report, and particularly its recommendation that the Immigration Rules
should "....ensure that children are supported to live with their
parents in the UK where their best interests require this." [45] In June 2013 they published a briefing
which summarises the UK's obligations in domestic and international law
and their concerns about how the new family migration rules have
impacted on children's rights to family life. [46]

The Government's response: willing to consider some minor changes

Following the publication of the APPG's report, a related Westminster Hall debate about the effects of the new family migration rules took place on 19 June 2013. [47] A similar debate took place in the House of Lords on 4 July 2013. [48]

During the debate in the Commons, Mark Harper,
Minister for Immigration, indicated a willingness to consider whether
there is scope to introduce greater flexibility in the evidential
requirements, such as in cases where the migrant partner has a job
offer:

I am prepared to consider
whether we can put in place some rules that are not vulnerable to abuse.
The best argument was the example of a couple, one of whom would be
working here but was insufficiently skilled to meet the criteria to
apply under the tier 2 scheme. (...) If people can get here under a tier
2 visa, that is fine. However, clearly there are people who could make a
contribution but could not meet those criteria.

The situation is not quite
as straightforward as people say, because we must guard against abuse.
If all people have to do is to show a piece of paper saying that they
have a job offer, I know from the number of cases I have seen that it
will not be long before people are setting up vague companies and
offering jobs that do not exist. There must be a way of putting in place
processes that do not lead to abuse. I think that is worth doing and I
am prepared to go away and do so. [49]

There was another Westminster Hall debate on the financial requirement on 9 September. [50]
The Minister confirmed that the Home Office was considering how the
Rules could take a migrant spouse's job offer into account, and that it
remained willing to consider arguments for further changes where
"unintended consequences" of the Rules are brought to its attention. [51]

Some minor changes to the evidential requirements
came into effect on 1 October, such as allowing for electronic bank
statements to be submitted and for cash savings to include proceeds from
a sale of property. [52]
The changes also included allowing sponsors returning to work in the UK
to count future on-target earnings towards the financial requirement.

4 July 2013: Legal challenges

Two British citizens and a refugee, who wished to
sponsor their non-EEA national partners to join them in the UK but could
not satisfy the financial requirement, have challenged the maintenance
requirements through judicial review.

Judgment was given in the High Court by Mr Justice Blake on 5 July 2013. [53]
The rules were not found to be unlawfully discriminatory, for example
against female sponsors or those living outside London and the
South-East. Nor were they deemed to be unlawful on the grounds that they
failed to make an over-riding accommodation of the best interests of
the child.

The court found that the rules had legitimate aims
(to promote the economic and social welfare of the whole community,
facilitate integration, and provide clarity and transparency), and were
rationally connected with those. It determined that the Home Secretary
was justified in concluding that greater maintenance resources were
needed in pursuit of these aims than the rules had previously required.

It also recognised that there might be legitimate and
proportionate restrictions on the admission of foreign spouses, and
that financial self-sufficiency of a foreign family is a legitimate
consideration.

However, the court highlighted several features of
the maintenance requirements applied since July 2012 that led it to
believe that that the scale of the interference with British citizens'
rights is "very significant". It concluded that, when applied to cases
sponsored by a British citizen or refugee, the Immigration Rules
relating to the £18,600 minimum income requirement were so onerous as to
be an "unjustified and disproportionate" interference with a genuine
spousal relationship:

123. Although there may be
sound reasons in favour of some of the individual requirements taken in
isolation, I conclude that when applied to either recognised refugees or
British citizens the combination of more than one of the following five
features of the rules to be so onerous in effect as to be an
unjustified and disproportionate interference with a genuine spousal
relationship. In particular that it likely to be the case where the
minimum income requirement is combined with one or more than one of the
other requirements discussed below. The consequences are so excessive in
impact as to be beyond a reasonable means of giving effect to the
legitimate aim.

124. The five features are:

i. The setting of the
minimum income level to be provided by the sponsor at above the £13,400
level identified by the Migration Advisory Committee as the lowest
maintenance threshold under the benefits and net fiscal approach
(Conclusion 5.3). Such a level would be close to the adult minimum wage
for a 40 hour week. Further the claimants have shown through by their
experts that of the 422 occupations listed in the 2011 UK Earnings
Index, only 301 were above the £18,600 threshold.

ii. The requirement of £16,000 before savings can be said to contribute to rectify an income shortfall.

iii. The use of a 30 month
period for forward income projection, as opposed to a twelve month
period that could be applied in a borderline case of ability to
maintain.

iv. The disregard of even
credible and reliable evidence of undertakings of third party support
effected by deed and supported by evidence of ability to fund.

v. The disregard of the spouse's own earning capacity during the thirty month period of initial entry.

Mr Justice Blake considered that there is a "wider
margin of appreciation" available to the Home Secretary in cases
involving a non-EEA national sponsor, observing that case law has
generally found that there is no particular reason why non-EEA
nationals' preferred place of residence must be facilitated by the
Immigration Rules. However, the position is different for refugees and
British citizens. British citizens have "a fundamental right of
constitutional significance recognised by the common law" to reside in
their own country, which is interfered with if their foreign spouse is
excluded from the UK. Refugees are also in a different position to other
non-EEA nationals, since they are unable to reside in their country of
nationality, and are compelled to reside in a host state.

The determination went on to suggest some "less intrusive" ways in which a financial requirement might be applied:

147. There are a variety of less intrusive responses available. They include:

i. reducing the minimum income required of the sponsor alone to £13,500; or thereabouts;

ii. permitting any savings
over the £1,000 that may be spent on processing the application itself
to be used to supplement the income figure;

iii. permitting account to
be taken of the earning capacity of the spouse after entry or the
satisfactorily supported maintenance undertakings of third parties;

iv. reducing to twelve months the period for which the pre estimate of financial viability is assessed.

However, the Rules were not struck down as unlawful
in general, and Mr Justice Blake noted that it is up to the Home
Secretary to consider whether to make changes in light of the judgment.

4.1 How are other applications affected by the judgment?

The Home Office immediately put on hold consideration of applications whilst it assessed the implications of the determination. [54] On 26 July 2013 it confirmed that it had appealed against the High Court's judgment. [55]

A letter dated 6 August from Lord Taylor, Home Office Minister, summarised the Government's position:

... matters of public
policy, including the detail of how the income threshold should operate,
are for the Government and Parliament to determine, not the Courts. We
also believe that the detailed requirements of the policy, which reflect
extensive consultation and consideration, are proportionate to its
aims. [56]

Consideration of applications that fall for refusal
solely because they do not satisfy the financial requirement continues
to be suspended until the Home Office's appeal has been finally
resolved. However, processing continues as normal for applications that
do meet all the Immigration Rules requirements, or that fall for refusal
for other reasons. An update posted on the UKBA website provided
further information, including guidance for persons who still wish to
submit an application and details of how persons whose applications have
been suspended can withdraw their application or request the return of
their travel documents. [57]

As at 31 December 2013, 2,628 visa applications
submitted overseas and 386 applications made in the UK had been put on
hold pending the outcome of the Court of Appeal case. [58]

The Court of Appeal hearing took place over 4-5 March 2014. The outcome is not yet known.

5 Impact on application numbers

The Home Office's Impact Assessment estimated
that the financial requirement would lead to a 36 - 46% reduction in
volumes of visas granted (i.e. out-of-country applications). [59]
It anticipated a smaller (10 - 20%) reduction in volumes of
applications granted in-country (e.g. when the foreign spouse is
switching from a different immigration category, or applying for the
further period of temporary leave as a spouse/partner). This is because
the foreign spouses' employment income could also be taken into account
in these cases.

Table 2: Estimated impact of minimum income threshold on visa grants and applications per annum

Lord Taylor provided a snapshot of recent application
statistics during a July 2013 Lords debate on the impact of the family
Immigration Rule changes:

The number of partner and
other family route entry clearance visas issued in the year ending March
2013 is 37,470. It has fallen by 16% compared with the year ending
March 2012. [61]

Statistics on numbers of visas granted to partners in recent years were provided in answer to a PQ in August 2013:

Keith Vaz: To ask the Secretary of State for the Home Department how many spousal visas were granted in each year since 2008.

Mr Harper: The latest published figures for partner visas issued under the family route are given in the following table:

Entry clearance visas issued to those entering as partners1 through the Family route, 2008 to 2012

Visas issued

2008

45,099

2009

39,556

2010

40,466

2011

34,832

2012

31,541

Notes: 1. Includes visas issued for a
probationary period and for immediate settlement. From July 2012, it
also includes 'post flight' partners joining those who have been granted
refugee status or humanitarian protection but who have yet to apply for
or be granted settlement. 2. It is not possible from the published
statistics to distinguish between those granted visas under the old
family rules and those granted visas under new family rules implemented
since 9 July 2012. Source: Table be_04. Immigration Statistics, January
to March 2013

The latest Home Office immigration statistics,
including those for entry clearance visas, are published in the release
Immigration Statistics January to March 2013, which is available from
the Library of the House and on the Department's website at:

[24]Transposed into domestic legislation by the Immigration(European Economic Area) Regulations 2006, SI 2006/1003 (as amended). EEA and Swiss nationals have similar rights due to bilateral agreements with the EU.